Addis Abeba, March 31/2020 – On 11 March 2020, the World Health Organization (WHO) declared the novel coronavirus (COVID-19) outbreak a global pandemic. The first case of COVID-19 was confirmed in Ethiopia two days after WHO declared the virus a global pandemic. At the time of writing of this piece, confirmed cases of the virus in Ethiopia have reached 22. Reports show that at the global level, over 700,000 people have been infected with the virus.

In Ethiopia, the federal and state governments are taking more and more restrictive measures to contain the virus. The Federal Government has decided to close the country’s borders. The Ethiopian Airlines has suspended all international flights, save for cargo flights. Currently, individuals can only enter into the country on the condition that they agree to be quarantined for 14 days, at their own expense. The states are also taking similar actions. Having declared state of emergency (SoE), the Tigray State has suspended public movements to and from rural areas within the state. It has also required those who enter the State to be to be tested. Moreover, it has ordered the closure of coffee houses, cafeterias and other similar establishments. Likewise, the Oromia, Amhara, SNNP, & Somali states have reportedly closed their boundaries by banning public transport vehicles. Moreover, several cities in Oromia, such as, Adama and Assela, have suspended public transport. Save for Tigray regional state, all these restrictive measures are being taken without declaring a SoE, making such measures constitutionally problematic.

It is public knowledge that the above restrictive measures are being taken while the country is planning to hold its sixth national elections come August, 2020. Clearly, the above and other even more restrictive measures that the federal and state governments are likely to take in the near future as the impacts of the pandemic progressively become severe will make the preparations towards the elections practically impossible. Political parties will not manage to campaign or hold meetings or public rallies which are critical pre-elections democratic activities which determine the legitimacy of election results. The National Electoral Board of Ethiopia (NEBE) will not manage to make the necessary preparations to successfully administer the elections. Federal and state authorities will also be unable to carry out functions that are critical for peacefully holding the elections since they will be preoccupied with fighting the pandemic. Moreover, voters will not be able to come out and vote in large number on election-day without taking a grave health risk, unless the pandemic is contained by then.

Yet, ‘[d]emocratic elections, at their best, are characterized by high turnout and equal levels of participation across different groups in a society’. Electronic or remote voting is not an option in Ethiopia for the simple reason that the country does not have the necessary technology and wherewithal to do this. All these will make holding the next national elections as planned difficult, if not impossible.

The elections are likely to be less than free and fair if they are to be held as planned. In Ethiopia members of House of Representatives (HoPR) are elected for a five year-term and the term of the current Parliament – which assumed power in September 2015 – will come to an end in September 2020. The Constitution (Art 58(3) requires elections for the next Parliament to be held, at the latest, a month before the expiry of the term of the current Parliament. Importantly, the upcoming elections are viewed as a litmus test as to whether Ethiopia is indeed transitioning to a democratic order, thus making the elections critical and significant. Having a federal government that has a legitimate mandate and that can ensure peace and order has become a critical matter which also entails holding the elections.

The above begs the question: what is the constitutional way out of this political quandary? What will be the fate of the current Parliament and cabinet once their terms come to an end without elections being held? How would the country be governed? These are indeed critical issues that need answers.

I argue there are two constitutional options for postponing the elections. However, neither should be used without a proper consultation and without reaching an agreement on the need to postpone the elections between the government and other political actors, including political parties and civil society organizations.

Option one – Dissolving the current Parliament

One of the constitutional options that will allow the country buy some time before the next elections is dissolving the current Parliament. The Constitution (Article 60 (1)) authorizes the Prime Minister to dissolve a parliament before the expiry of its term. However, it does not state specific reasons under which the Prime Minister must invoke Article 60 (1) in order to dissolve Parliament. The Prime Minister only needs the consent of Parliament for its own dissolution. As such, he/she does not even need to raise the pandemic as an excuse for dissolving it. While the silence of the Constitution in this regard is dangerous – opening the door for politically motivated dissolution of Parliament – it comes in handy in the country’s current circumstances. The Prime Minister can ask the consent of the Parliament, which I assume will not be too difficult to secure, and dissolve it. The dissolution of Parliament should take place preferably around August 2020, just before the expiry of its term, which will give the country about nine months (four months before and six months after Parliament’s dissolution) to prepare for the next elections.

During the six months after the dissolution of Parliament, the current ruling party and, therefore, the Prime Minister, can serve as a care taker government. The care taker government can only govern using existing laws and make the necessary preparation for the next elections. It cannot enact legislation of any sort, including proclamation, regulation or decree. Nor can it repeal existing ones.

Even though he is not constitutionally enjoined, it is imperative that the Prime Minister consults and secures the consent of all political parties and groups as well as civil society organizations if he decides to dissolve Parliament. The country’s political state of affairs demand open and transparent consultations with all stakeholders before such decisions that have monumental political and constitutional consequences are made.

Option two – Declaring a state of emergency

The other possible way out, it seems, would be to declare a SoE. The Constitution authorizes the Council of Ministers to declare a SoE when, among others, an epidemic occurs. The SoE will have to be endorsed by Parliament within 48 hours when Parliament is in session and within 15 days when in recess. It is not disputable that COVID-19 is a pandemic since the WHO has already declared it so. Thus the Council of Minister has the necessary factual and constitutional ground to declare a SoE. The SoE will be valid for six months and can be renewed by Parliament every four months. The Constitution does not state how many times Parliament can renew a SoE. It thus seems that it can do so as many times as necessary.

After having declared SoE, the Council of Ministers can suspend all ‘political and democratic rights’ save for those that are listed as non-derogable. Indeed the intrusions into or the restrictions on political and democratic rights that are imposed as part of the SoE must be necessary, proportional and logically linked to the problem at hand. The right to vote and be elected is obviously a democratic and political right and it is not among those that are listed as non-derogable. I think it will not be too difficult to establish the necessity of suspending political activities by invoking the gravity to the public health concern that COVID-19 imposes. The government can thus declare SoE by invoking the danger that COVID-19 imposes on public health and suspend all political activities, including those that are linked to the planned elections, at least for six months. This will in effect postpone the elections itself.

What if the SoE does not come to an end before the end of the term of Parliament? Who will then be governing the country? What kind of political power can government exercise after the expiry of its terms? The Constitution does not give us clear answers to these questions. However one cannot assume that the framers of the Constitution anticipated that what causes the declaration of SoE will always come to an end before the end of the term of a parliament. We can assume that they envisioned that the cause for a declaration of a SoE, which also can be a cause for suspending elections, would persist after the end of the term of a parliament which endorsed the SoE. One can thus safely assume that the framers of the Constitution anticipated that the Council of Minister that declared the SoE and Parliament that endorsed the SoE will continue their functions until the cause of the SoE comes to an end and elections are held.

Which option is preferable?

I think either options can be used for postponing the elections even though Option one might appear a bit arbitrary. It will nonetheless give the government, NEBE and other stakeholders up to nine months, depending on when Parliament is dissolved, to prepare for the elections. The second option might provide a longer or shorter period depending on how long it will take to control the spread of COVID-19 and when the SoE is declared. This option also gives a degree of legality to the various restrictive measures the state and federal governments are taking to contain the pandemic. Moreover, the second option does not seem to reduce the legislative and executive powers of Parliament and the Council of Ministers, respectively.

Regardless of the options that it adopts, the government should create public awareness on the fact that its decision is constitutionally founded. It should also consult all political parties, political groups, and civil society organizations regarding which option to choose. The decision should be based on a broad-based consensus. Even if constitutionally unproblematic, the option that the government chooses must not be, or appear to be, an imposition from “above”, lest it brings detrimental political consequences. AS

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